Transparency in the Dispute Settlement Process: Country best practices

This report by the International Institute for Sustainable Development (IISD) examines the trend toward increasing transparency in investor-state dispute settlement (ISDS). It analyzes how states are moving away from the traditionally confidential nature of private commercial arbitration by integrating specific transparency rules into bilateral investment treaties (BITs) and free trade agreements (FTAs), particularly regarding public notice, document access, open hearings, and amicus curiae submissions.

• Investor-state arbitrations often lack transparency because they rely on procedural rules designed for private commercial arbitration, which can weaken the perceived legitimacy of the system and hinder the public's ability to assess investment agreement obligations.
• There is a significant disparity in transparency between the ICSID and UNCITRAL rules. ICSID automatically discloses the registration of disputes and the legal reasoning behind awards on its website, whereas UNCITRAL rules make it extremely difficult for the public to know if a proceeding has been initiated and restrict the publication of final awards.
• To ensure public awareness of disputes, countries like the United States and Australia have integrated requirements into their treaties for the respondent state to promptly make notices of intent and notices of arbitration available to the public.
• States are increasingly prescribing the mandatory publication of documents during proceedings. The US Model BIT and the COMESA Investment Agreement require the publication of pleadings, memorials, briefs, hearing transcripts, and tribunal orders.
• Canada's approach to document transparency in its Model FIPA establishes public availability as the default rule, though it allows for exceptions if both disputing parties agree, provided that final awards remain public.
• There is a shift toward open hearings to prevent investors from using veto powers to keep proceedings secret. The US and Canada have committed to open hearings in their model agreements and recent treaties, with the US Model BIT stating the tribunal "shall conduct hearings open to the public."
• The use of amicus curiae briefs allows non-parties to provide relevant information to tribunals. While the 2006 ICSID Rules explicitly allow this after consulting parties, Canada's Model FIPA adds a specific requirement for tribunals to consider whether there is a "public interest in the subject-matter of the arbitration."
• Regarding final awards, the 1976 UNCITRAL Rules require the consent of both parties for publication, whereas the US Model BIT and Canada's Model FIPA mandate that awards be made public.
• To balance transparency with the need for secrecy, all examined agreements include protections for "confidential information," typically defined as confidential business information or information privileged under a party's law.

APA

Bernasconi-Osterwalder, N., & Johnson, L. (2011). Transparency in the Dispute Settlement Process: Country best practices. International Institute for Sustainable Development. https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf

Chicago

Bernasconi-Osterwalder, Nathalie, and Lise Johnson. Transparency in the Dispute Settlement Process: Country best practices. International Institute for Sustainable Development, 2011. https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf.

Wikipedia

{{cite report |last1=Bernasconi-Osterwalder |first1=Nathalie |last2=Johnson |first2=Lise |title=Transparency in the Dispute Settlement Process: Country best practices |publisher=International Institute for Sustainable Development |date=February 2011 |url=https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{bernasconiosterwalder2011transparency, author = {Bernasconi-Osterwalder, Nathalie and Johnson, Lise}, title = {{Transparency in the Dispute Settlement Process: Country best practices}}, institution = {International Institute for Sustainable Development}, year = {2011}, month = feb, url = {https://www.iisd.org/system/files/publications/transparency_dispute_settlement_processes.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }